State v. Walsh

• Court: North Carolina Supreme Court
• Citation: State v. Walsh, 224 N.C. 218, 29 S.E.2d 743 (N.C. 1944)
• Decision Date: 12 April 1944
• Docket Number: 290.
• Parties: STATE v. WALSH et al.

29 S.E.2d 743

224 N.C. 218

STATE v. WALSH et al.

No. 290.

Supreme Court of North Carolina

April 12, 1944

Both defendants were convicted of assault with intent to commit rape upon the State's witness. From judgment imposing prison sentences, the defendants appealed.

Harry M. McMullan, Atty. Gen., and George B. Patton and Hughes J Rhodes, Asst. Attys. Gen., for the State.

Max C. Wilson and J. T. Pritchett, both of Lenoir, and Trivette & Holshouser, of Boone, for defendants.

DEVIN Justice.

For the purpose of this appeal it is unnecessary to set out at length the voluminous testimony offered in the trial below. The State's evidence tended to show an aggravated and felonious assault on the witness Ileana Barlow by the defendants, separately, at different times, on the night of June 6, 1943. This witness, who lives in Lenoir and is sixteen years of age, had gone with three young men in an automobile some distance to a lake or bathing beach, arriving there about 6:30 or 7:00 P.M. The defendants were already there. Each of them made improper advances to her, and sought, at different times, to overcome her resistance and to induce her to consent. Two of the young men with whom she had gone there drove off and left her, and she was forced to get in the car with the defendants and Younce, one of the young men who had come with her. About 9:00 P.M. they started back toward Lenoir. On the way they stopped for some time off the highway near a church. There, at the request of defendant Walsh, the other two men got out and moved off a short distance, and Walsh, according to the State's evidence attempted to ravish the girl on the back seat of the car. As the result of her vigorous resistance Walsh abandoned or did not succeed in carrying out his purpose. Thereafter Walsh got out, and defendant Bishop got in the automobile and against her protest and resistance sought, without success, to have sexual relations with her. Younce testified he remonstrated with the defendants but without avail. Later the automobile was driven back to Lenoir, Bishop and Younce got out, and Walsh drove the car to another part of town and kept the girl in the car for some time. She finally succeeded in getting out of the car, and walked home.

The defendants denied assaulting the witness in any manner or attempting to ravish her. Defendant Walsh admitted that in the car he tried, without success, to induce her consent, and defendant Bishop testified he subsequently got in the car to see if she would consent to him. Each denied the use of force.

Among other things the court charged the jury as follows: 'The court charges you that if at any time the assault was being made, if there was an assault being made by one or both of these defendants, that if that intent existed in the mind of one of the defendants, or both of them, to ravish and carnally know and rape this young girl, even if they abandoned it and failed to carry it out, if that intent existed at any time during any assault, they would be guilty of assault with intent to commit rape. So the State says you ought to convict them on that count, and that you ought...